Monday, January 28, 2013

On Rye, with Mustard

It is said that a competent prosecutor could get a ham sandwich indicted by a grand jury. I believe the aphorism something of an overstatement (what, in fact, has a ham sandwich ever done to you). Nevertheless, with "probable cause" the modest standard of proof necessary for the GJ to return an indictment there are, no doubt, cases that seem solid early on but never mature into something trial worthy.

So it seems with the weekend's announcement that the Grand Jury investigating the murder of JonBenet Ramsey so many years ago recommended charges against the Ramsey parents. DA Alex Hunter refused to go forward, citing (as prosecutors do) his opinion that he would lose at trial. Law professors are now arguing Colorado statutes - whether the members of the grand jury could have reported their findings directly to the court, bypassing Hunter - but one thing is clear.

Nothing.
A deputy DA once barked at me "I practice in these courts, I know what the judges will accept." At the time it seemed an adjunct of the trump card "I never argue law with lay people" that lawyers are taught to recite. I didn't take it well - I am a lawyer and I did practice criminal law, albeit as a member of the defense bar. Unfortunately, the man had a point.

Alex Hunter did not come to Boulder sitting on a hay bale. He was a competent, capable trial lawyer. No one suggests that he was unworthy of an internationally-observed trial. In fact, as a politician the TV face time could not otherwise be purchased with money.

Think of the consequence of an acquittal. The parents walk away, free, regardless of the truth. If the parents did it, the prosecutor cannot ever bring them to justice. If the evidence is thin and the parents didn't do it, you are subjecting true victims to the unspeakable horror of seeing autopsy photos in court. By waiting.... JonBenet may yet get her day in court.

Trial practice is the realm of grown ups. The stakes are unbelievably high. Maybe Alex Hunter should have moved forward.

But you gotta respect a man who makes a hard decision and sticks with it.